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Morrison v. Kicklighter

Court of Appeals of Georgia

November 14, 2014

MORRISON et al.
v.
KICKLIGHTER

Page 775

Negligence. Chatham State Court. Before Judge Gnann, pro hac vice.

Brooks Law Firm, Eugene C. Brooks, for appellants.

Brennan, Harris & Rominger, G. Mason White, for appellee.

ANDREWS, Presiding Judge. McFadden, J., concurs. Ray, J., concurs in Divisions 1 and 2 (a)-(c), and in the judgment.

OPINION

Page 776

Andrews, Presiding Judge.

Charles, Suzette, and Thomas Morrison sued Steve Kicklighter to recover property damage allegedly caused when Kicklighter negligently backed his vehicle into the Morrisons' parked truck. The Morrisons sought to recover the cost of repairing damage to the truck, the diminished value of the repaired truck, and the cost of a rental [329 Ga.App. 631] vehicle during the repairs. On the basis that these losses were covered by a liability insurance policy on Kicklighter's vehicle issued by State Farm Mutual Automobile Insurance Company, the Morrisons also brought the action pursuant to OCGA § 33-4-7 against State Farm (as an unnamed party) seeking to recover penalties and attorney fees against State Farm for allegedly failing to make a good faith effort to adjust and settle their pre-trial demand for payment of the covered losses.[1]

Under OCGA § 33-4-7 (d):

... The insurer shall be an unnamed party, not disclosed to the jury, until there has been a verdict resulting in recovery equal to or in excess of the claimant's demand. If that occurs, the trial shall be recommenced in order for the trier of fact to receive evidence to make a determination as to whether bad faith existed in the handling or adjustment of the attempted settlement of the claim or action in question.

The trial was not recommenced for the second phase under this provision to consider the Morrisons' bad faith claim against State Farm because the jury rendered a verdict in favor of Kicklighter on the property damage claims, and the Morrisons recovered nothing. The Morrisons appeal from the trial court's denial of their motion for a new trial. Because we conclude that the verdict lacks any evidentiary support and was contrary to law, we reverse.

1. The Morrisons claim that there was no evidentiary basis for the verdict in favor of Kicklighter, and that the trial court erred by denying their motion for a new trial made on the general grounds. See OCGA § § 5-5-20; 5-5-21.

On appeal from the trial court's denial of a motion for a new trial on the general grounds set forth in OCGA § § 5-5-20 (verdict contrary to evidence and principles of justice and equity) or 5-5-21 (verdict strongly against weight of evidence), the appellate court has no discretion to grant a new trial on that ground; " we can only review the evidence to determine if there is any evidence to support the verdict." Cook v. Huff, 274 Ga. 186, 186 (1) (552 S.E.2d 83) (2001) (citation and punctuation omitted); Drake v. State, 241 Ga. 583, 585 (247 S.E.2d 57) (1978).

The standard of appellate review of the denial of a motion for new trial on the general grounds is essentially the same as [329 Ga.App. 632] that applicable to the denial of a motion for directed verdict or judgment n.o.v. The appellate courts can only set a verdict aside, on evidentiary grounds, as being ...

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